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[2015] WASC 267
Supreme Court of WA
2015-07-01
Chaney J
Original judgment source is linked above.
(This judgment was delivered extemporaneously on 1 July 2015 and has been edited from the transcript.)
1 The Attorney General seeks leave to intervene in these proceedings for the purpose of making submissions on the interpretation and operation of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) (the State Agreement). The Attorney General does not anticipate that he would be filing any evidence, calling any witnesses or engaging in any interlocutory disputes but seeks to make submissions, most likely, at the conclusion of the trial.
2 The application is supported by the defendants and is neither consented to nor opposed by the plaintiff. There is no issue as to the court's jurisdiction to allow a non-party to intervene. Nor is there is any dispute as to the principle that a non-party will have a right to intervene in proceedings where its legal rights and interests will be directly affected. If there is only an indirect effect on its interests, the court may, nevertheless, permit intervention if it is in the interests of justice to do so. That principle was reaffirmed by Martin CJ in Smith v Commissioners of the Rural and Industries Bank of Western Australia,[1] citing the analysis of the question of intervention undertaken by Brennan CJ in Levy v State of Victoria. [2]
3 The Attorney General asserts that there are three bases upon which intervention should be allowed. The first is an assertion that he has a direct interest in the matter because the litigation involves the terms of the State Agreement and, therefore, has a direct bearing on the interests of the State.
4 Secondly, it is said that, even if there is no direct interest, then there is an indirect interest, because questions of interpretation of various clauses of the State Agreement are raised on the pleadings and questions of proper construction of the State Agreement are matters at least of indirect interest to the State by reason of it being a party to the agreement.
5 Thirdly, it is said that there are discretionary reasons for intervention including, amongst other things, the recent decision of Edelman J in the Federal Court to allow intervention by the Attorney General in litigation which, broadly speaking, relates to aspects of the same mining operations and the same State Agreement.[3]
6 It is not necessary for me to assess whether or not the interest of the Attorney General is direct or indirect, but I am satisfied that at least there is a sufficient indirect interest to enliven the jurisdiction to grant intervention. I am also satisfied that it is in the interests of justice to do so for the reasons outlined by the Attorney General in his written submissions. Namely, that there are questions of construction of provisions of the State Agreement which, at least indirectly, affect the interest of the State and in respect of which the court would be assisted by submissions from the Attorney General.
7 For those reasons, I propose to grant the application by the Attorney General for leave to intervene, and order that the Attorney General has leave to intervene in these proceedings for the purpose of making submissions as to the interpretation and operation of the State Agreement.
8 I also order that there is leave for any party to apply in relation to the terms of the intervention.
[1] Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100 [41].
[2] Levy v State of Victoria [1997] HCA 3; (1997) 189 CLR 579.
[3] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 3] [2015] FCA 542.
(1997) 189 CLR 579